Decision #189/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 1, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 15, 2002, the worker filed a claim with the Workers Compensation Board (WCB) for a "heart attack" that occurred on November 8, 2002. The worker described the accident as follows:
"Friday morning, we had broken an electrode on a furnace that I had worked on, and I went up to repair the electrode, came down, proceeded to work the heat, pulled the test, and there was still a bunch of scrap by the door, took a steel bar and banged the scrap in. I went into the vault, proceeded to tap the heat out, my relief man came to relieve me, went for my shower, and after my shower I felt drained, my elbows were starting to hurt me big time, sat in the dry area for about 15 minutes, thinking I was just tired, proceeded to go home, was stopped by [name], Union Head. He told me I looked awful, made me go back into the building to the First Aid Room, he called ERT [Emergency Response Team] (own ERT personnel) and they asked for symptoms, and I complained that both my elbows felt like they were on fire. ERT gave me oxygen, and called an ambulance to take me to the hospital."
On November 19, 2002, the worker called his WCB adjudicator and stated that the electrode problem occurred at the end of his shift and that it had been a normal shift up to that point. He stated that prior to his heart attack, he was doing his normal work activities and that nothing unusual occurred.

In a letter to the WCB dated November 22, 2002, the employer's Safety & Health supervisor indicated that the worker apparently reported having sore elbows while at work on November 8, 2002 but did not relate it to any cardiac problems. He stated that the worker's face was quite flushed and that a co-worker observed this and brought him back into the plant. After being assessed by the ERT, the worker was taken to the hospital. The supervisor stated that the duties assigned to the worker on the shift in question were not in significant excess of the conditions that he experienced on a regular basis.

On December 17, 2002, the adjudicator referred the case to a WCB medical advisor specializing in internal medicine. The medical advisor was asked to review the file and to provide answers to several questions. In a response dated January 15, 2003, the medical advisor stated that the diagnosis was an acute inferior wall myocardial infarction. He stated that the dominant cause of the myocardial infarction was 100% occlusion of the first obtuse marginal artery which was a branch of the circumflex artery.

In a decision dated February 5, 2003, the WCB adjudicator outlined his position that the claim for compensation was not acceptable. The adjudicator stated that based on the available medical information, it was not established that the worker's cardiovascular condition was related to his employment and that it had not been established that a work related event or trigger factor occurred.

On January 7, 2004, a worker advisor provided the WCB with a job description and a report/diagram prepared by the worker's union representative. Based on the submitted information, the worker advisor contended that the worker was engaged in activities which were outside of his normal work activities at the time of his heart attack. The worker advisor stated, "It is our opinion that the extreme heat and strenuous activity that were outside the normal working conditions lead to the myocardial infarction. As a result the claim should be accepted and benefits payable retroactive to November 8, 2002."

Based on a review of the additional information, a WCB Review Officer referred the case back to Rehabilitation and Compensation Services to determine whether the worker's activities on November 8, 2002 could be considered an event or trigger factor in the development of his myocardial infarction.

Subsequent file records showed that the WCB adjudicator spoke with the employer's Safety & Health supervisor on January 26, 2004 regarding the work activities that are required to repair a broken electrode. On February 13, 2004, the supervisor provided the WCB with records associated with the worker's work activities between November 4 and 9, 2002.

In a February 16, 2004 decision to the worker advisor, the WCB adjudicator confirmed that the work activities carried out by the worker on November 8, 2002 were not significantly above his normal work activities and did not constitute a trigger event. The adjudicator stated,

"…the time taken for removal of the broken electrode and it's replacement was in line with the previous 4 electrode changes that week and as such does not support that he experienced any significant difficulty in performing his duties.

…the Job Analysis you provided indicates that the worker is required to climb to the top of the furnace to change equipment on the electrodes and as Mr. [the worker] previously indicated his duties were part of his normal work activities."

On February 19, 2004, the worker advisor appealed the above decision to Review Office.

In a memo to the supervisor of Short Term Claims dated May 6, 2004, Review Office outlined its position that further investigations were required prior to considering the appeal made by the worker advisor. Review Office noted that the employer's supervisor had indicated that a broken rod was more strenuous than adding a new one and that the effort required depended on how hard it was to latch onto the broken rod. According to the worker's union representative, the removal of the electrode on November 8, 2002 was not routine and required extreme physical exertion. He stated that it had been months since the worker had been required to fish an electrode out and that this was such a strenuous job that the foreman now assisted in doing it.

Subsequent file records showed that the WCB adjudicator attended the work site to view the process and normal work activities associated with melting steel. The adjudicator also spoke with the worker, his foreman, and second helper regarding the events that occurred on November 8, 2002.

In a decision dated November 4, 2004, the adjudicator stated that he was unable to change his previous decision based on the following factors:
  • no information had been provided to indicate that the cause of the worker's blocked artery was related to his employment. The noted risk factors were hyperlipidemia and cigarette smoking.
  • worst case scenario temperature at the work site was 110 degrees Fahrenheit. The worker indicated there was scrap present on the side of the furnace and this would have lowered the temperatures he was exposed to.
  • the total time from power off to power on was recorded at 13 minutes which included the worker's reported difficulties with the furnace roof. The short amount of time to complete the process indicated that the change went well.
  • the employer indicated that the worker was assisted during the process even though they could not recall who assisted him. The electrode breakage was a common event and part of the worker's regular duties even though the worker had been fortunate in not having a recent occurrence on his shift.
On April 7, 2005, another worker advisor disagreed with the adjudicator's decision of November 4, 2004 and submitted a "testimonial" from the worker's union representative to Review Office for consideration.

In a decision dated April 22, 2005, Review Office noted that the worker told his adjudicator on November 19, 2002 that he was doing his normal work activities with nothing unusual prior to his myocardial infarction. In Review Office's opinion, the work performed by the worker on November 8, 2002 did not create conditions in significant excess of what he was exposed to on a regular basis. Review Office therefore confirmed that the claim for compensation was not acceptable. On May 26, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who suffered a myocardial infarction after completing a full shift of work in a steel mill. The claim has not been accepted by the WCB. The worker has appealed.

The Panel was asked to determine whether the worker's claim is acceptable. For the appeal of this issue to be successful, the Panel must find that the worker's myocardial infarction was caused by his employment as provided in the board's policy. The Panel was not able to reach this conclusion.

Evidence and Argument at the Hearing

The Panel conducted a thorough review of the claim file and convened an oral hearing. The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his worker advisor, employer representative and the Panel. The worker called one witness.

The employer was represented by an advocate and two staff persons. The advocate made a presentation on behalf of the employer and the staff members answered questions that arose.

The worker described his job duties as a first helper. He also described his activities on the day that he suffered the myocardial infarction. Near the end of the shift he was required to extract and replace a broken electrode from a furnace. He advised that he performed this duty by himself although usually it is done with assistance. He indicated that the electrode was leaning against the wall of the furnace so that he could not just put a sling on it for the crane to lift out. He testified that he had to pry the electrode from the wall of the furnace with a pry bar while he held a sling with his other hand. He advised that the molten material in the furnace was over 1000 degrees Fahrenheit at the time he performed this activity. He testified that extracting broken electrodes is not a daily occurrence.

The worker advised that he completed the electrode extraction and his shift, showered and was leaving the premises when he met a co-worker who recognized that he was not well. The worker testified that he had never had chest pain or heart problems prior to this incident.

The worker called as a witness a co-worker who has worked as a first helper. The co-worker described the task of extracting a broken electrode from a furnace. He noted that no two electrode removals are the same. He stated that if the electrode is wedged, it is hard to move. He stated that his experience is that assistance is not always available when removing broken electrodes. When asked whether 13 minutes to extract a broken electrode is a fast or long job, he responded "…average quite-well, it all depends what is going on in that furnace." The co-worker disagreed with the information provided by the employer regarding the temperature which the worker would have been exposed to while extracting the electrode.

With respect to the physical effort involved in extracting a broken electrode, the co-worker provided these answers to questions posed by the Panel:

Q: "Would you classify the work of a first helper as very physical?

A: Yes.

Q: How does removing an electrode compare to the regular duties of a first helper? Is it more physical?

A: That is part of his duties.

Q: Is it more physical? Is it less physical?

A: It's one of the more physical duties he'd probably have. Yes, it's physical. They're all physical duties. We're steelworkers."

The witness also testified that he met the worker leaving the premises after his shift, noted the worker was not well and called for emergency assistance. He testified that the worker complained about elbow pain, was not the right colour but was not breathing funny.

The foreman who was on duty at the time of the incident provided evidence on behalf of the employer. He referred to records which indicated that the time to extract and reset the broken electrode was 13 minutes including prep time. The information on this record was entered into a computer by the worker during the shift.

The foreman testified that the records show that the electrode was extracted and reset in 13 minutes. The worker disagreed with this interpretation of the record as it did not contain a notation about resetting the electrode.

The foreman could not remember if he assisted with this particular electrode change. Regarding whether an electrode can be extracted by one person, the foreman testified:
"And I'm not saying the extraction can't be done by one guy but the setting of the other electrode has to be done with two people because you need somebody in the booth to open the clamp and run the holder up or run the holder down. So it couldn't have been done by one person."
The foreman also explained the temperature measurements which he took during a site visit by a WCB staff person. The ambient temperature in the area near the furnace was recorded at 110 degrees Fahrenheit. He advised that the furnace has water cooling panels which help reduce the heat and an exhaust system which pumps the heat from the top of the furnace. He also explained the temperatures of the furnace at various stages of the production and the impact of scrap in the furnace.

Analysis

The Panel determined that the claim was not acceptable. In arriving at this conclusion, the Panel considered Board Policy 44.10.10.60, Myocardial Infarctions which sets out the conditions under which a claim for a heart attack is acceptable. This policy reads, in part:
"The WCB will adjudicate claims involving myocardial infarctions by first determining the compensability of any underlying cardiovascular disease that is present. … If it is determined that the underlying cardiovascular disease is not compensable, then the myocardial infarction will be adjudicated as an accident.
  1. A myocardial infarction will be compensable if the following criteria are met:

    1. An event or trigger factor has occurred that is deemed to be significant and which occurred in the course of employment and arose out of the employment. In order for a work cause to be determined to be the cause of a myocardial infarction, medical evidence of causation must be available and the factors believed to have caused it must create conditions in significant excess of the conditions that the worker experiences on a regular basis …"
At the hearing the worker testified that he had not had a heart attack prior to November 6, 2002. However, medical evidence indicates that he had underlying cardiovascular disease.

The worker's representative submitted that:
"We believe that the combination of events on this particular day and the conditions that he was exposed to while extracting the broken electrode were significant and were in excess to those that he would have experienced on a regular basis as a first helper."
The worker's representative submitted that the triggering factor was the act of removing the broken electrode from the furnace on the day in question.

From the evidence on file and from the testimony given at the hearing, the Panel finds that the act of removing the broken electrode from the furnace was not a triggering factor as required by the policy.

The Panel finds that the act of extracting and resetting the electrode in this case was not in significant excess of the conditions that the worker experiences on a regular basis. In arriving at this conclusion the Panel relies on the records which establish the time for the procedure as being 13 minutes. The Panel accepts the foreman's interpretation of the record. The Panel also notes that the co-worker's testimony that 13 minutes is quite average. The Panel also accepts the evidence of the co-worker that the duties of a first helper are physical. The evidence shows that the extraction of broken electrodes is not a daily occurrence but is a regular duty of first helpers.

With respect to the heat which the worker might have been subjected to in completing the extraction, the Panel accepts the evidence of the foreman that in a worse case scenario, the temperature would be approximately 110 degrees Fahrenheit.

The Panel also finds that there is no medical evidence identifying a work related cause. The evidence for this injury is that the worker suffered an acute inferior wall myocardial infarction. There was 100% occlusion of the first obtuse artery, a branch of the circumflex artery. With respect to the cause of the worker's myocardial infarction, the WCB medical consultant stated:
"The only identified area of vascular disease was in the first obtuse marginal branch… He does have marginally raised lipid levels. The dominant cause of his myocardial infarction is occlusion of the artery… There is probably a localized area of atheroma in that artery. The risk factors include cigarette smoking and hyperlidemia."
The Panel concludes, on a balance of probabilities, that the myocardial infarction is not work related and the claim is not acceptable. Accordingly, the appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of December, 2005

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